91 F.

3d 610
65 USLW 2139, 5 A.D. Cases 1227, 18
A.D.D. 372, 8 NDLR P 250

Leonard C. McNEMAR, Appellant,

v.
The DISNEY STORE, INC., Appellee.
No. 95-1590.

United States Court of Appeals,

Third Circuit.
Argued June 11, 1996.
Decided July 31, 1996.

Alan B. Epstein (argued), Jablon Epstein Wolf & Drucker, Philadelphia,

PA, for Leonard C. McNemar.
Anthony B. Haller (argued), Jill G. Weitz, Pepper, Hamilton & Scheetz,
Philadelphia, PA, for The Disney Store, Inc.
Vicki Laden, Legal Aid Society of San Francisco, San Francisco, CA, for
amicus curiae, The Employment Law Center, The Lambda Legal Defense
and Education Fund, The Aids Law Project of Pennsylvania, and The
Disability Rights Education and Defense Fund, Inc.
Stephen M. Koslow, American Association of Retired Persons,
Washington, DC, for amicus curiae, The American Association of Retired
Persons.
Richard M. Schall, Tomar, Simonoff, Adourian, O'Brien, Kaplan, Jacoby
& Graziano, Haddonfield, NJ, for amicus curiae New Jersey Employment
Lawyers' Association.
Robert J. Gregory (argued), Washington, DC, for amicus curiae Equal
Employment Opportunity Commission.
Michael J. Ossip, Morgan, Lewis & Bockius, Philadelphia, PA, for amicus
curiae The Chamber of Commerce of the United States of America.

Ann E. Reesman, McGuiness & Williams, Washington, DC, for amicus

curiae The Equal Employment Advisory Council.
Before: STAPLETON, GREENBERG and ALDISERT, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.

Under the particular facts presented here we must decide whether the teachings
of Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3d
Cir.1996), may be applied in this case to invoke the doctrine of judicial
estoppel. Specifically, we must decide whether Appellant is judicially estopped
from contending that he is a " 'qualified person with a disability' ... who, with or
without reasonable accommodation, can perform the essential functions" of a
job as contemplated by the Americans With Disabilities Act, 42 U.S.C.
12111(8), 12112(a), in light of his representations to federal and state
government agencies that he is totally disabled and unable to work.

This issue is presented in Leonard McNemar's appeal from the district court's
order granting The Disney Store's motion for summary judgment on
McNemar's discrimination claims under the Americans With Disabilities Act
(ADA), the New Jersey Law Against Discrimination (NJLAD), and 510 of
the Employee Retirement Income Security Act (ERISA). McNemar appeals
also from the district court's order granting Disney summary judgment on his
New Jersey state law claims for invasion of privacy and intentional infliction of
emotional distress.

In granting summary judgment, the district court held that McNemar was
judicially estopped from asserting his claims under the ADA, NJLAD, and
ERISA because of his prior sworn statements, made in his application for
Social Security Disability Insurance benefits and New Jersey state disability
benefits, that he was unable to work because of a disabling physical condition.
The district court further held that McNemar had failed to satisfy prima facie
requirements of his state law claims of invasion of privacy and intentional
infliction of emotional distress.

The district court had jurisdiction over Appellant's ADA and ERISA claims
pursuant to 28 U.S.C. 1331. The district court had supplemental jurisdiction
over Appellant's state law claims pursuant to 28 U.S.C. 1367. This court has
jurisdiction pursuant to 28 U.S.C. 1291. The appeal was timely filed under

Rule 4(a), Federal Rules of Appellate Procedure.

5

This court reviews the district court's application of judicial estoppel for abuse
of discretion. Yanez v. United States, 989 F.2d 323 (9th Cir.1993); Levin v.
Robinson, Wayne & La Sala, 246 N.J.Super. 167, 586 A.2d 1348, 1357 (Law
Div.1990) (citing Matter of Cassidy, 892 F.2d 637, 642 (7th Cir.1990)). This
court has plenary review of the district court's order granting summary
judgment on the state law claims. Kinney v. Yerusalim, 9 F.3d 1067, 1070 (3d
Cir.1993), cert. denied, 511 U.S. 1033, 114 S.Ct. 1545, 128 L.Ed.2d 196
(1994).

Because application of the doctrine of judicial estoppel always is factually

driven, we now will set forth the facts in extensive narrative detail.

I.
7

McNemar was employed by The Disney Store, Inc. as an assistant store

manager in Cherry Hill, New Jersey. On October 12, 1993, McNemar was
hospitalized for pneumocystis carinii pneumonia and diagnosed as HIVpositive. Between becoming ill in October 1993 and being terminated at Disney
on November 18, 1993, McNemar would miss 17 1/2 of 25 work days (68% of
his normal working time).

McNemar revealed the results of his diagnosis to Lillian Forcey, the store
manager, whom he considered to be his friend. He did not tell anyone else at
the store, but he did tell other friends, including two people he had worked with
at a Disney store in Delaware before his transfer to Cherry Hill in 1992.

On November 8, 1993, Joelyn Ale, the Disney Store District Manager,

summoned McNemar to her office, privately informed him that she had heard
rumors that he had tested positive for HIV, and asked if the rumors were true.
Ale explained that she was informing McNemar of the rumors so that, should
he want to, he could address them. McNemar admits that Ale was being
supportive, offering to help him in any way possible. However, he told Ale that
he was not in fact HIV-positive, but that he had pneumonia. McNemar thanked
Ale for informing him of the rumors, declined any assistance, and said he
thought he knew the source and would deal with the problem himself.

10

On November 16, 1993, in knowing violation of company policy, McNemar

took two dollars from the store cash register and asked another employee,
Estelle Williamson, to use the money to purchase cigarettes for him. Because

Disney policy requires that all employees store their personal belongings in
lockers in the back of the store, McNemar had no cash on his person. Rather
than go to his locker to retrieve money from his wallet, McNemar took the two
dollars from the cash register and gave it to Williamson to purchase the
cigarettes. McNemar then discarded the cash register transaction record, which,
according to company policy, must be signed and filed whenever money from
the cash register is used.
11

Williamson purchased the cigarettes and then called Disney's Loss Prevention
Hotline to report that McNemar had taken money from the register, in violation
of Disney's anti-shrinkage policy. After Williamson returned with the
cigarettes, McNemar took a smoke break in the back of the store, but failed to
retrieve his own money in order to reimburse the cash register.

12

McNemar had sole responsibility for closing the store that night, a procedure
that included balancing cash deposits with receipts. In performing this task,
McNemar still did not replace the cash in the register or put it with the cash
deposits for the day; he simply sealed the cash deposit bags without replacing
any money. Even though the daily balance was discrepant by the two dollars he
had taken, McNemar made no notation or report of what had occurred.

13

Meanwhile, Williamson had reported McNemar's initial infraction to another

assistant manager, Maria Skyrm Brookover. Brookover checked the register,
found that it was two dollars short, and looked unsuccessfully for a transaction
record in the accordion file where it should have been placed. Brookover
instructed Williamson to call Disney's "Loss Prevention Hotline"; Brookover
also called the hotline herself.

14

The next morning, November 17, 1996, Evelyn McCorristin, the assistant
manager who opened the store, followed standard store procedures in checking
the previous day's cash deposits, register amounts, and the safe fund.
McCorristin discovered that the cash deposits were off by two dollars, and
noted the discrepancy. She then counted the register and safe fund amounts,
which were as they should have been, not containing any extra money. A short
time later, Brookover, who was not working that morning, called McCorristin to
ask whether there was still a dollar shortage; McCorristin told her that there
was. Brookover then told Ale about what had happened the previous day,
confirming that the money was still missing.

15

The Disney Store management then began the investigation procedure it

uniformly follows when an employee is reported for the unauthorized taking of

company money or property for personal use. On November 18, 1996,

McNemar's next day of work, he was interviewed by Ale, in person, and by Jeff
Hill, a Disney Store Loss Prevention Supervisor in Atlanta, by telephone.
During the interview, McNemar admitted to taking the money for his personal
use, after which, at Hill's request, McNemar wrote and signed a statement
recounting his actions in the matter.
16

On the basis of this admission, Ale and Hill then immediately suspended
McNemar, asked him for his store keys and identification, and told him that
they would speak to Disney headquarters in California about whether he should
be discharged. At this point McNemar broke down in tears and apologized for
taking the money, then divulged that he was HIV-positive.

17

Ale reported the substance of the interview to Teri Meiers, Employee Relations
Supervisor at California Headquarters. Upon hearing that McNemar had at the
last minute revealed that he was HIV-positive, Meiers thought it prudent to
check with her superiors before approving a discharge. She consulted with
Michael Frank, Vice President for Human Resources, who felt the situation was
clear-cut and required a discharge, and with Curt Carlile, then Manager of
Training and Employee Relations, who concurred. Both Frank and Carlile felt
that McNemar should not be penalized less severely than other employees in
similar situations simply because of his disclosure.1

18

Later that same day, Ale telephoned McNemar and asked him to come in for
another meeting to discuss the decision to terminate his employment. When
McNemar refused to come in, Ale told him of the decision to discharge him.

II.
19

Following his dismissal, McNemar applied for and received New Jersey state
disability benefits, Social Security disability benefits, and exemption from
repayment of an educational loan from the Pennsylvania Higher Education
Agency. To obtain these benefits, McNemar and his doctors have certified
under penalty of perjury that he has been totally and permanently disabled and
unable to work since October 1, 1993, at least five weeks before he was
discharged by Disney.

20

For example, in his November 23, 1993, application for Social Security
Disability Insurance (SSDI) benefits, McNemar made a sworn statement that he
"became unable to work because of my disabling condition on October 01,
1993." 2 On the same date, McNemar applied for Supplemental Social Security

Income (SSI), and on that application he stated that he was disabled and was
informed that making false statements would subject him to civil and criminal
penalties.3
21

On December 2, 1993, McNemar applied for New Jersey State disability

benefits, certifying that his disability was "AIDS" and that he had been afflicted
since October 12, 1993.4 On January 11, 1994, McNemar certified to the New
Jersey State Disability Insurance Service that he had been "unable to perform
the duties of [his] regular occupation" since October 12, 1993.5

22

On his December 2, 1993 application for state disability benefits, McNemar

submitted a statement, signed by Dr. Roseann Lorenick, his physician at the
time, that McNemar had been disabled and unable to work because of a
disability from "10/93 to present." JA 166. On January 20, 1994, Dr. Lorenick
certified that McNemar had been under her care for the "period of disability"
from "10/14/93 through present" and that "[t]he patient has been unable to
perform all the duties of his/her regular or usual job (i.e., too disabled to work)
from 10/16/93." JA 169. And on June 15, 1994, Dr. John Turner, a specialist
whom McNemar began seeing in February 1994, certified that "[a]s of October
13, 1993 Mr. McNemar has been totally and permanently disabled." JA 179.

23

On July 19, 1994, McNemar applied to the Pennsylvania Higher Education

Agency for a deferment from making payments on his loan principal, on the
basis that he was "unable to work and earn money." JA 178. On July 27, 1994,
when completing his portion of McNemar's loan deferment application, Dr.
Turner faced a choice of certifying that McNemar had (1) a temporary
disability or (2) a total and permanent disability. Dr. Turner chose the latter,
signing the following statement:

I24certify that in my best professional judgment [McNemar is] ... [p]ermanently

totally disabled and so is unable to work and earn money because of an impairment
that is expected to continue indefinitely or result in death.
25

JA 178.

III.
26

On November 17, 1994, McNemar filed a complaint against Disney which

alleged unlawful discrimination in violation of the ADA and ERISA and which,
relying on supplemental jurisdiction, contained several state law claims.6 On
May 8, 1995, Disney moved for summary judgment on all of McNemar's
claims. On June 16, 1995, McNemar filed his brief in opposition and formally

withdrew, with prejudice, half of his claims because they provided redundant
bases of recovery.7 On June 30, 1995, the district court granted Disney's motion
and entered judgment in Disney's favor on all of McNemar's remaining claims,
holding that McNemar was judicially estopped from asserting his claims under
the ADA, NJLAD and ERISA because of his prior sworn statements to various
government agencies that he was totally and permanently disabled and unable
to work. The district court held also that McNemar had failed as a matter of law
to satisfy prima facie requirements of his state law claims for invasion of
privacy and intentional infliction of emotional distress. This appeal followed.
IV.
27

The doctrine of judicial estoppel serves a consistently clear and undisputed

jurisprudential purpose: to protect the integrity of the courts. The Court of
Appeals for the Ninth Circuit recently described this as the basis on which a
court has the discretion to exercise judicial estoppel: "[T]he purpose of the
doctrine is to protect the integrity of the judicial process. Accordingly, the
doctrine of judicial estoppel 'is an equitable doctrine invoked by a court at its
discretion.' " Yanez v. U.S., 989 F.2d 323, 326 (9th Cir.1993) (quoting Morris
v. California, 966 F.2d 448, 452-53 (9th Cir.1991), cert. denied, 506 U.S. 831,
113 S.Ct. 96, 121 L.Ed.2d 57, (citation omitted) (1992)).

28

This court has accepted the doctrine of judicial estoppel at least since Scarano
v. Central Railroad Co. of New Jersey, 203 F.2d 510, 513 (3d Cir.1953), and
consistently has reiterated the judicial system integrity purpose of the doctrine.
See, e.g., Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355,
361 (3d Cir.1996) ("[j]udicial estoppel is intended to prevent parties from
playing fast and loose with the courts by asserting inconsistent positions"); EF
Operating Corp. v. American Buildings, 993 F.2d 1046, 1050 (3d Cir.), cert.
denied, 510 U.S. 868, 114 S.Ct. 193, 126 L.Ed.2d 151 (1993) ("It goes without
saying that one cannot casually cast aside representations, oral or written, in the
course of litigation simply because it is convenient to do so"); Fleck v. KDI
Sylvan Pools, Inc., 981 F.2d 107, 121 (3d Cir.1992), cert. denied, 507 U.S.
1005, 113 S.Ct. 1645, 123 L.Ed.2d 267 (1993) (judicial estoppel "preserves the
integrity of the judicial system" by preventing parties from "assert[ing] a
position in this proceeding inconsistent with the one they previously asserted");
Delgrosso v. Spang & Co., 903 F.2d 234, 241 (3d Cir.), cert. denied, 498 U.S.
967, 111 S.Ct. 428, 112 L.Ed.2d 412 (1990) (judicial estoppel "precludes a
party from assuming a position in a legal proceeding that contradicts or is
inconsistent with a previously asserted position"); Gleason v. United States, 458
F.2d 171, 175 (3d Cir.1972) (judicial estoppel is "applied to secure substantial
equity").

29

McNemar argues that the use of judicial estoppel is subject to narrow

requirements that preclude its use here:

30
Thus,
in this Circuit, a litigant seeking to judicially estop his opponent from
asserting a contrary position must show that: (1) his opponent had asserted an
inconsistent position under oath in a prior judicial proceeding; (2) the prior statement
was accepted by a judicial tribunal; (3) he was a litigant to the first judicial
proceeding; and (4) he would be prejudiced unless the opponent is estopped.
31

Appellant's Br. at 22 (relying on, inter alia, Scarano ). We disagree. The

Scarano court was careful to warn that in applying judicial estoppel, " 'each
case must be decided upon its own particular facts and circumstances.' "
Scarano, 203 F.2d at 513 (quoting Galt v. Phoenix Indemnity Co., 120 F.2d
723, 726 (App.D.C.1941)). Moreover, in Ryan Operations this court recently
emphasized that the application of judicial estoppel is not limited in the
formulaic manner urged by Appellant:

32

There are many instances in which the assertion of inconsistent positions can
work to the advantage of a party ... where there is no identity or relationship
between those against whom the claim (or defense) is asserted. Where the
contentions are mutually exclusive, it is irrelevant that they are asserted against
diverse parties for the purposes of determining judicial estoppel. The integrity
of the court is affronted by the inconsistency notwithstanding the lack of
identity of those against whom it is asserted.

33

Ryan Operations, 81 F.3d at 360. Thus the doctrine of this court on judicial
estoppel remains rooted in the twin concepts that have characterized our
jurisprudence from our early pronouncements in Scarano in 1953 to the current
refinements expressed this year in Ryan Operations: judicial estoppel is an
equitable doctrine, invoked by a court in its discretion (1) to preserve the
integrity of the judicial system by preventing parties from playing fast and
loose with the courts in assuming inconsistent positions, and (2) with a
recognition that each case must be decided upon its own particular facts and
circumstances.

34

In light of this clearly established rationale, the district court was well within its
discretion to hold that McNemar "is estopped from arguing now that he is
'qualified' under the ADA and NJLAD." Dist. Ct. Op. at 8-9. Indeed, the
jurisprudence of this court on judicial estoppel would seem to speak directly to
McNemar's situation: "[t]o permit a party to assume a position inconsistent with
a position it had successfully relied upon in a past proceeding 'would flagrantly
exemplify ... playing "fast and loose with the courts" which has been

emphasized as an evil the courts should not tolerate.' " Delgrosso, 903 F.2d at
241 (quoting Scarano, 203 F.2d at 513).
35

We are satisfied that the district court's application of judicial estoppel qualifies
under the two-part threshold inquiry articulated in Ryan Operations: (1) Is the
party's present position inconsistent with a position formerly asserted? (2) If so,
did the party assert either or both of the inconsistent positions in bad faith--i.e.,
"with intent to play fast and loose" with the court? Ryan Operations, 81 F.3d at
361.

36

Clearly McNemar has asserted inconsistent positions regarding his ability to

work. Before the Social Security Administration he and his physicians have
certified under penalty of perjury that he was totally and permanently disabled.
He made similar representations when he applied for New Jersey state
disability benefits. And when applying for an exemption from making
payments on his student loans, he represented to the state of Pennsylvania that
he was unable to work and earn money. Thus, McNemar has represented to one
federal agency and to the agencies of two different states that he was totally
disabled and unable to work--while now, in claiming relief under the American
Disabilities Act, he states that he is "a qualified person with a disability who,
with or without reasonable accommodation, can perform the essential functions
of a job" as contemplated by 42 U.S.C. 12111(8), 12112(a).

37

Moreover, well reasoned decisions have judicially estopped plaintiffs in

situations similar to this one from "speak[ing] out of both sides of [their] mouth
with equal vigor and credibility before [the] court." Reigel v. Kaiser
Foundation Health Plan of N.C., 859 F.Supp. 963, 970 (E.D.N.C.1994). See,
e.g., August v. Offices Unlimited, Inc., 981 F.2d 576, 582-84 (1st Cir.1992);
Garcia-Paz v. Swift Textiles, 873 F.Supp. 547, 554 (D.Kan.1995); Kennedy v.
Applause, Inc., 1994 WL 740765 at * 3-* 4 (C.D.Cal. Dec. 6, 1994).
McNemar's statements on his disability benefits application are "unconditional
assertions as to his disability"; he should not now be permitted to "qualify those
statements where the application itself is unequivocal." Smith v. Midland
Brake, Inc. 911 F.Supp. 1351, 1361 (D.Kan.1995) (citing Scarano, 203 F.2d at
513).

V.
38

McNemar alleges that in terminating his employment, Disney violated the

Americans With Disabilities Act and the New Jersey Law Against
Discrimination. Because the New Jersey statute relies on the same analytical
framework as does the federal act, the district court addressed these claims

together. Dist. Ct. Op. at 6-7 (citing Shaner v. Horizon Bancorp., 116 N.J. 433,
561 A.2d 1130, 1132 (1989)). To qualify for protection against discrimination
under Title I of the ADA, a plaintiff must prove that he or she is a "qualified
person with a disability who, with or without reasonable accommodation, can
perform the essential functions of the job." 42 U.S.C. 12111(8), 12112(a).
Accordingly, a person unable to work is not intended to be, and is not, covered
by the ADA. See 42 U.S.C. 423(d); see also H.R.Rep. No. 101-485(II),
101st Cong.2d. Sess. 71 (1990), reprinted in 1990 U.S.C.C.A.N. 353; H.R.Rep.
No. 101-485(III), 101st Cong.2d. Sess. 35-36 (1990), reprinted in 1990
U.S.C.C.A.N. 458. The New Jersey statute contains a similar requirement,
prohibiting discrimination against handicapped persons "unless the nature and
extent of the handicap reasonably precludes the performance of the particular
employment." N.J.S.A. 10:5-4.1. Thus to be covered by these statutes,
McNemar had to prove that at all material times he was able to perform the
essential functions of his job, with or without accommodation. See McDonald
v. Commonwealth of Pennsylvania, 62 F.3d 92, 96 (3d Cir.1995).
39

In arriving at its decision, the district court observed that "most federal courts
agree that an employee who represents on a benefits application that he is
disabled is judicially estopped from arguing that he is qualified to perform the
duties of the position involved." Dist. Ct. Op. at 9; see, e.g., August v. Offices
Unlimited, Inc., 981 F.2d 576, 582-84 (1st Cir.1992) (plaintiff who certified on
form for disability benefits that he was "totally disabled" was precluded as a
matter of law from arguing that he was a "qualified handicapped person" under
Massachusetts law); Garcia-Paz v. Swift Textiles, 873 F.Supp. 547, 554
(D.Kan.1995) (plaintiff with multiple sclerosis who certified on long-term
disability benefits application that she was "unable to perform material duties of
work" was estopped from arguing that she was qualified individual under
ADA); Kennedy v. Applause, Inc., 1994 WL 740765 at * 3-* 4 (C.D.Cal. Dec.
6, 1994) (plaintiff with chronic fatigue syndrome who represented for purposes
of obtaining disability benefits that she was completely disabled was estopped
from arguing that she was qualified under ADA); Reigel, 859 F.Supp. at 967-70
(plaintiff with shoulder injury who claimed for purposes of receiving disability
insurance payments that she was prematurely disabled was estopped from
arguing that she was qualified under ADA).8

40

Thus even though this court has not previously applied judicial estoppel to facts
similar to those before us here, other federal courts have addressed analogous
factual situations, and many have judicially estopped the plaintiffs in those
situations from "speak[ing] out of both sides of [their] mouth with equal vigor
and credibility before [the] court." Reigel, 859 F.Supp. at 970. That
precedential basis, and this court's teachings on judicial estoppel, clearly

support the discretion of the district court to estop a party from asserting
contradictory positions.
41

In adjudicating cases brought under the ADA and NJLAD, courts apply the
burden-shifting framework applicable to cases brought under Title VII of the
Civil Rights Act of 1964. See 42 U.S.C. 12117; Zambelli v. Historic
Landmarks, Inc., 1995 WL 116669 at * 3 (E.D.Pa. Mar. 20, 1995); Shaner, 561
A.2d at 1132. This framework has three steps: (1) the plaintiff bears the burden
of establishing a prima facie case of discrimination; (2) the burden then shifts to
the defendant, who must offer a legitimate non-discriminatory reason for the
action; and (3) if the defendant satisfies this burden, the plaintiff must then
come forth with evidence indicating that the defendant's proffered reason is
merely a pretext. See Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d
668 (1973).

42

The district court determined that McNemar failed to establish a prima facie
case of discrimination under the criteria articulated above because he admitted
that he was not qualified to perform his job as Assistant Manager at Disney,
and that he is thus judicially estopped from arguing that he is now "qualified"
under the ADA and the NJLAD. Dist. Ct. Op. at 8-9. Under the facts of this
case, we will not disturb that determination.

VI.
43

McNemar and the amici challenge the district court's application of the doctrine
of judicial estoppel here, arguing at great length that the court unjustifiably has
stretched the doctrine to address a problem that properly should be decided by
looking to the legislative purposes of anti-discrimination that underlie the
ADA. This is essentially the position of the court in Smith v. Dovenmuehle
Morg., Inc., 859 F.Supp. 1138, 1141-43 (N.D.Ill.1994), a case which the
district court below studied and rejected. In Smith, a plaintiff with AIDS
received disability benefits from the Social Security Administration on the
representation that he was disabled, then sued his former employer under the
ADA. In holding that the plaintiff was not judicially estopped from arguing that
he was qualified under the ADA, the court reasoned that to hold otherwise
would put the plaintiff "in the untenable position of choosing between his right
to seek disability benefits and his right to seek redress for an alleged violation
of the ADA." Id. at 1142. The Smith court reasoned also that judicial estoppel
would frustrate the ADA's purpose of combatting discrimination against
disabled persons. Id.

44

In explaining its disagreement with the Smith court, the district court below
addressed much of the challenge presented by the amici on the judicial estoppel
issue. First, after recognizing the apparent unfairness of forcing individuals to
choose between seeking disability benefits and suing under the ADA, the
district court concluded that, nevertheless, "there is no indication that either the
United States Congress or the New Jersey legislature intended to provide
disability benefits to persons capable of obtaining gainful employment, and it is
the province of the legislature rather than this Court to authorize such a double
recovery." Dist. Ct. Op. at 11. Second, the district court reasoned that because a
disabled person who believes he or she has been the victim of discrimination
"retains the option of filing suit pursuant to the ADA, this Court fails to
understand how the ADA's goals would be thwarted by adopting the principle
of judicial estoppel in this case." Id. at 11-12.

45

The Employment Law Center, one of the amici curiae, argues that because "
[t]he Social Security disability system and the [ADA]'s determination of
disability diverge significantly in their respective legal standards and statutory
intent," application of judicial estoppel "between them is thus inappropriate."
Amicus Br. of Employment Law Center, et. al., at 4. Similarly, McNemar
argues that, because AIDS is listed as a "presumptive disability" on the Social
Security application forms, his representations that he is "totally and
permanently disabled" do not render him unqualified to perform the job of
Assistant Manager at Disney under the ADA and NJLAD. We disagree.

46

The fact that AIDS is listed as a "presumptive disability" on the benefit

application forms is irrelevant to the case at hand, because the "presumptive
disability" status serves only to eliminate the requirement that individuals
afflicted with AIDS offer evidence that they are unable to perform their
previous jobs. Whatever the Social Security Administration's criteria for
eligibility for disability benefits, the fact remains that McNemar told the U.S.
Government and the states of New Jersey and Pennsylvania under penalty of
perjury that he was physically unable to work, and the district court had the
discretion to judicially estop him from taking a contradictory position in this
proceeding.

47

Moreover, we are troubled by this argument from Appellant and two amici, the
Employment Law Center and the EEOC, for it carries the implication that a
person afflicted with HIV somehow should be permitted to misrepresent
important information. The fact that the choice between obtaining federal or
state disability benefits and suing under the ADA is difficult does not entitle
one to make false representations with impunity. Nothing in the reasoned
jurisprudence of judicial estoppel goes this far. Nothing grants a person the

authority to flout the exalted status that the law accords statements made under
oath or penalty of perjury. Nothing permits one to undermine the integrity of
the judicial system "by playing fast and loose with the courts by asserting
inconsistent positions." Ryan Operations, 81 F.3d at 358. Nothing vests such
immunity.
VII.
48

The EEOC argues also that McNemar's sworn declaration of total disability is
"afteracquired evidence" that has no bearing on the prima facie issue of
McNemar's status as a qualified individual with a disability. Yet the threshold
question in this case, fully examined by the district court, is precisely whether
McNemar is covered by the ADA for purposes of his prima facie case.

49

Nevertheless, the EEOC wants to mix apples--a plaintiff's prima facie case-with oranges--a defendant's non-discriminatory-reason. It seeks to analogize
this case to the teachings of McKennon v. Nashville Banner Pub. Co., 513 U.S.
352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), which address the doctrine of
"after-acquired evidence" and establish it as an affirmative defense that
becomes meaningful once the plaintiff has established a prima facie case of
discrimination. At that point, the employer is required to articulate its nondiscriminatory reason and then may assert its additional defenses, such as afteracquired evidence, which may limit damages. See St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 523-24, 113 S.Ct. 2742, 2755-56, 125 L.Ed.2d 407
(1993).

50

We emphasize again that the relevant question in this case is whether McNemar
established a prima facie case of discrimination, and because he has not, Disney
has no obligation even to articulate a legitimate business reason for its decision.
See Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; Sempier v. Johnson & Higgins,
45 F.3d 724, 730-32 (3d Cir.), cert. denied, 515 U.S. 1159, 115 S.Ct. 2611, 132
L.Ed.2d 854 (1995). Seen in this light, the EEOC's assertion that "[a] plaintiff's
claim cannot be defeated by an issue of qualifications that has nothing to do
with the employer's motivation for the adverse action"9 becomes irrelevant,
again because that assertion has to do with Disney's putative pretext for firing
McNemar, which is not a proper concern for the court unless McNemar first
has established a prima facie case that he was qualified for the job. This he
failed to do.

VIII.
51

We turn now to Appellant's other contentions.

A.
52

McNemar alleges that Disney violated 510 of ERISA, 29 U.S.C. 1140,

because one of the determining factors in Disney's decision to discharge
McNemar was to prevent the vesting of his pension rights with Disney eleven
months later.10 To establish a prima facie case under ERISA, McNemar was
required to show: (1) that he belongs to the protected class; (2) that he was
qualified for the position involved; and (3) that he was discharged or denied
employment under circumstances that provide some basis for believing that the
prohibited intent (to interfere with the employee's attainment of pension
eligibility) was present. See Turner v. Schering-Plough Corp., 901 F.2d 335,
347 (3d Cir.1990) (citing Dister v. Continental Group, Inc., 859 F.2d 1108,
1115 (2d Cir.1988)).

53

For the reasons presented above, McNemar cannot establish the second
required element for making a prima facie case under ERISA--that he is
qualified for the position involved. Because McNemar has not, as a matter of
law, established a prima facie case of a 510 violation, the district court
properly entered judgment in favor of Disney on its motion for summary
judgment regarding McNemar's ERISA claim.

B.
54

New Jersey has recognized that the tort of invasion of privacy is "not one tort,
but ... comprises four distinct kinds of invasion of four different interests of the
plaintiff, which are tied together by the common name...." Rumbauskas v.
Cantor, 138 N.J. 173, 649 A.2d 853, 856 (1994) (quoting Canessa v. J.I.
Kislak, Inc., 97 N.J.Super. 327, 235 A.2d 62, 66 (Law Div.1967)). McNemar
contends that Disney is liable for two of these: (1) intrusion upon his seclusion,
and (2) public disclosure of private information. We disagree.

1.
55

New Jersey has adopted 652B of the Restatement (Second) of Torts, which
states:

56 who intentionally intrudes, physically or otherwise, upon the solitude or

One
seclusion of another or his private affairs or concerns, is subject to liability to the
other for invasion of his privacy, if the intrusion would be highly offensive to a
reasonable person.
57

Figured v. Paralegal Technical Services, Inc., 231 N.J.Super. 251, 555 A.2d

663, 666 (App.Div.1989) (quoting 3 Restatement (Second) of Torts 652 B

(1977)). Although the intrusion need not be by physical intrusion, the examples
set forth in the Restatement all contain elements of involuntariness. See
Rumbauskas, 649 A.2d at 857.
58

McNemar argues that Disney is liable for intrusion upon his seclusion because
Joelyn Ale asked him whether he was HIV-positive. However, Ale's inquiry
does not appear to have imposed an aspect of involuntariness on McNemar;
indeed, McNemar has admitted that Ale's intent in the conversation about his
condition was to be supportive, not confrontational. JA 30. McNemar certainly
was not compelled to, and in fact did not, tell Ale about his condition. In light of
this evidence, Ale's inquiry hardly was coercive, let alone "highly offensive to a
reasonable person," and thus was not an invasion of privacy under New Jersey
law.

2.
59

On the second basis of invasion of privacy--public disclosure of private

information--McNemar alleges that Disney invaded his privacy by publicly
disclosing private facts when, in late November 1993, an assistant store
manager told Julia Walsh, a friend of McNemar's, that he had resigned because
he had AIDS. To state a claim for public disclosure of private facts, a plaintiff
must demonstrate (1) that the defendant has given publicity to matters that
actually were private, (2) that dissemination of such facts would be offensive to
a reasonable person, and (3) that there is no legitimate interest of the public in
being apprised of the facts publicized. Bisbee v. John C. Conover Agency, Inc.,
186 N.J.Super. 335, 452 A.2d 689, 691-92 (App.Div.1982) (adopting 3
Restatement (Second) of Torts 652 D).

60

The Restatement defines "publicity" as follows:

61
"Publicity"
... means that the matter is made public, by communicating it to the
public at large, or to so many persons that the matter must be regarded as
substantially certain to become one of public knowledge.... Thus it is not an invasion
of the right to privacy ... to communicate a fact concerning the plaintiff's private life
to a single person or even to a small group of persons.
62

Restatement (Second) of Torts 652D, Comment (a). The evidence of

McNemar's publicity consists primarily of allegations of (1) a disclosure by a
store manager to McNemar's aunt and uncle that he "had resigned because it
was too much" on his health, and (2) a disclosure by an unidentified store
employee to a friend of McNemar's who already knew that he was HIV-

positive. JA 284, 724-5. Clearly, as a matter of law, these allegations are not
sufficient to state a prima facie case of invasion of privacy for publicity given to
private facts. Accordingly, the district court properly granted Disney's motion
for summary judgment on this element of McNemar's claim.
C.
63

New Jersey law requires that a plaintiff who claims intentional infliction of
emotional distress meet four requirements: (1) that the defendant acted
recklessly or intentionally; (2) that the conduct was extreme and outrageous;
(3) that the defendant's actions were the proximate cause of the plaintiff's
distress; and (4) that the plaintiff actually suffered severe emotional distress.
Figured, 555 A.2d at 665 (quoting Buckley v. Trenton Saving Fund Soc., 111
N.J. 355, 544 A.2d 857, 863 (1988) and Restatement (Second) of Torts 46
(1965)).

64

McNemar's contention is unpersuasive because Disney's conduct was not

extreme and outrageous, which under New Jersey law means conduct "so
outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious and utterly intolerable in a
civilized community." Figured, 555 A.2d at 665. The record does not offer any
evidence to suggest that Disney's discharge of McNemar was extreme and
outrageous. McNemar admits that his discharge was handled in a discreet
manner, and that the reasons for his discharge were not disclosed to others. JA
39-40. Moreover, there is no evidence that Disney harassed McNemar in any
way; and termination of employment does not, without evidence of harassment,
support a claim of intentional infliction of emotional distress. See Heckroth v.
Amer. Tel. & Tel., 1991 WL 157302 at * 5 (E.D.Pa. Aug. 9, 1991) (citing
Borecki v. Eastern Int'l Mgt. Corp., 694 F.Supp. 47, 61 (D.N.J.1988)).
McNemar has not alleged harassment by Disney. Accordingly, the district court
properly granted summary judgment in favor of Disney on McNemar's
intentional infliction of emotional distress claim.

******
65
66

We have considered all arguments presented by the parties and conclude that
no further discussion is necessary.

67

The judgment of the district court will be affirmed.

At the time of the incident, Disney maintained a policy strictly prohibiting

At the time of the incident, Disney maintained a policy strictly prohibiting

employees from commingling their own money with store money or from using
store money for personal purposes. In the three years since the policy has been
in effect, Disney has terminated 52 employees (including McNemar) for
violations of the policy. In several of these instances, the amount of money at
issue was comparable to the two dollars at issue here. See Dist. Ct. Op. at 3-4;
JA 990-93

In that sworn statement, McNemar averred the following:

My name is Leonard C. McNemar.
My social security number is - - - - - - - - -.
....
I became unable to work because of my disabling condition on October 01,
1993.
I am still disabled.
....
I understand that I must provide medical evidence about my disability, or assist
the social security administration in obtaining the evidence.
....
I agree to notify the Social Security Administration if:
--My medical condition improves so that I would be able to work, even though I
have not yet returned to work.
....
The above events may affect my eligibility to disability benefits as provided in
the Social Security Act, as amended.
....
My reporting responsibilities have been explained to me.
I know that anyone who makes or causes to be made a false statement or
misrepresentation of a material fact in an application or for use in determining a
right to payment under the Social Security Act commits a crime punishable
under federal law by fine, imprisonment or both. I affirm that all information I

have given in connection with this claim is true.

....
Signature / Leonard C. McNemar / Date: 12-2-93
JA 985-88.
3

That S.S.I. Application reads, in relevant part, as follows:

My name is LEONARD C. McNEMAR. My social security number is - - - - - - - -.
....
I am disabled. My disability began on October 12, 1993.
....
I have health insurance that pays towards the cost of my medical care.
IMPORTANT INFORMATION--PLEASE READ CAREFULLY
You must report any change within 10 days after the end of the month it occurs.
....
I understand that anyone who knowingly lies or misrepresents the truth or who
arranges for someone to knowingly lie or misrepresent the truth is committing a
crime which can be punished under federal law, state law, or both. Everything
on this application is the truth as best I know it.
SIGNATURE / Leonard C. McNemar / DATE: 12-2-93
JA 174-77.

On that application, McNemar certified as follows:

I was unable to work during the period for which benefits are claimed and
hereby certify that I have read and understood my benefit rights. Also, I certify
that the foregoing statements made by me on this form are true. I am aware that
if any of the foregoing statements made by me are willfully false, I may be
subject to penalties, which include criminal prosecution. You are hereby
authorized to obtain any medical and employment information that is necessary
to determine the eligibility of this claim.

SIGNATURE / Leonard C. McNemar / DATE: 12-2-93

JA 166.
5

At the conclusion of that form, on which McNemar indicated that "the first date
on which [he was] unable to work because of this disability" was "10/12/93," he
signed a statement certifying that:
I was unable to perform the duties of my regular occupation during the period
for which benefits are claimed and hereby certify that information furnished by
me on my original application and on this form is true. I know that the law
provides penalties for false statements made to obtain benefits.
JA 168.

These included discrimination in violation of NJLAD, defamation, invasion of

privacy, violation of public policy, intentional infliction of emotional distress,
disclosing medical records of an individual with AIDS, and breach of an
implied duty of good faith and fair dealing

These were defamation, violation of public policy, disclosing medical records

of an individual with AIDS, and breach of an implied duty of good faith and fair
dealing

On this point, Appellant relies significantly on Overton v. Reilly, 977 F.2d

1190, 1196 (7th Cir.1992) ("[E]ven if a finding of disability could have
preclusive effect in a private lawsuit, such a finding is consistent with a claim
that the disabled person is 'qualified' to do his job under the Rehabilitation
Act.") (footnote omitted). We have difficulty accepting the relevance of
Overton for several reasons
First, we are not convinced that the Overton facts are sufficiently similar to the
facts at bar to be persuasive. In Overton, significant evidence existed that the
plaintiff was able to perform his duties subsequent to the Social Security
determination: "But the evidence that Overton completed a large number of file
reviews and permits, that his work was adequate and that his research paper
was well received does tend to show that Overton was able to carry on
substantial gainful activity." Overton, 977 F.2d at 1196. Moreover, Overton did
not involve judicial estoppel; the court did not address it, and the parties did not
appear even to argue it. Finally, the Seventh Circuit recently has applied
judicial estoppel in a case more like the case at bar. In DeGuiseppe v. Village
of Bellwood, 68 F.3d 187, 191-92 (7th Cir.1995), the court applied judicial
estoppel to preclude a plaintiff from asserting that the defendant had unlawfully
discharged him where the plaintiff had testified during his pension board

hearing that he had ceased working because he was totally and permanently
disabled and unable to work.
9

EEOC Amicus Br. at 12 (citing Mardell v. Harleysville Life Ins. Co., 31 F.3d
1221, 1228 (3d Cir.1994), vacated, 514 U.S. 1034, 115 S.Ct. 1397, 131 L.Ed.2d
286 (1995), modified 65 F.3d 1072 (3d Cir.1995))

10

Section 510 provides in relevant part:

It shall be unlawful for any person to discharge, fine, expel, discipline, or
discriminate against a participant or beneficiary for exercising any right to
which he is entitled under the provisions of an employee benefit plan ... or for
the purpose of interfering with the attainment of any right to which such
participant may become entitled under the plan....
29 U.S.C. 1140. Disney employees' pension rights vest after the employee has
been with the company for five years. Here, McNemar had been a Disney
employee for four years, one month. JA 43-44.